Posted
by
timothy
on Thursday March 21, 2013 @06:10PM
from the how-to-come-off-wrong dept.

skade88 writes "Ars is reporting that GoPro, the company that makes cameras used in extreme sports such as sky diving and swimming with dolphins has issued a DMCA take down notice on a review at DigitalRev that they do not like. See DMCA notice here. From the article: 'DigitalRev has a blog post up about the takedown, suggesting that most DMCA takedowns are "abusive" in nature. "We hope GoPro is not suggesting, with this DMCA notice, that camera reviews should be done only when they are authorized by the manufacturers," writes DigitalRev. "GoPro (or should we call you Go*ro instead?), we'd be interested to hear what you have to say" about the infringement notice.'"

I called them and let them know that they won't be getting any more business from me. Easy peasy. They already had some sort of a ridiculous pre-scripted answer -- complete nonsense implying that there was copyrighted content that digitalrev used without permission. Well, the DMCA latter doesn't even raise the issue of anything copyrighted being used illegally, merely alleged trademark law violations. Personally, I want them to apologize, and they better be quick about it. I've had lots of fun recently with Sony Alpha cameras, and I may just get a SONY HDR-AS15 out of spite. It is a slower camera than Hero 2, but hey, Streisand effect FTW:)

complete nonsense implying that there was copyrighted content that digitalrev used without permission. Well, the DMCA latter doesn't even raise the issue of anything copyrighted being used illegally, merely alleged trademark law violations.

That's the first thing I noticed. The letter isn't even consistent. Here it talks about the trademarks that it believes are being used improperly:

We have a good faith belief that the Internet site found at digitalrev.com infringes the rights of the Company by using the following trademarks of the Company:

"GOPRO" Registered: 3/3/2009 US Registration# 3032989

"HERO" Registered: 12/20/2005 US Registration# 3308141

And here they threaten ISP with copyright infringement:

As you may know, if this information is not removed after notice that complies with the DMCA, the Internet Service Provider may also be held liable for the copyright infringement.

The letter doesn't even keep it straight whether they're talking about a copyright action or a trademark action.

The "won't GoPro (pun intended), so you MUST deal with Sony" thing misses on one point. There are more than two players in the "ruggedized camera" market. For example, Nikon, during the film era, was synononymous with dive cameras, in the "Nikonos" line, and Hasselblad has cameras so rugged that they can literally fly to the moon (Apollo's cameras were all Hasselblads). Both Nikon and Hasselblad have digital cameras, and they're rugged, but neither of them has one rugged enough to claim that it's up to their exacting standards yet. Canon also makes ruggedized cameras, and even lowly Vivitar has a digital in their "sea and ski" line. As a prosumer videographer, I wouldn't touch Sony if you paid me anyways, they invariably tend to have just slightly crappier CCD/CMOSes than the rest of the market, and they want to push you toward their crappy bundled tech (memory stick, I'm looking at you). If they made a Nikonos digital, I'd break limbs to be the first to mortgage my soul to get one

I was interested in a GoPro as well, but I just can't give money to Sony. Looks like I'll need to find something else.

"Action cameras" are an increasingly crowded segment. Heck, Monoprice, the guys who sell reasonably-priced HDMI cables and such, have released a house-branded one. That's part of why GoPro courting bad PR seems so insane: Right now, they have a pretty dominant brand; but it isn't as though shoving some cellphone parts into a ruggedized case is exactly a proprietary super-secret lost art of master craftsmanship. It seems... foolish... to squander a lead by looking like total dickheads in public.

Bad PR? There's no such thing as bad PR. What is this going to do. People will compare specs to see if they can get an equivalent camera elsewhere. Well, they're the dominant brand, handily. So the small number of sales you lose through righteous indignation will be more than offset by those curious as to what the fuss is all about.

I have had nothing but technical problems with Contour cameras. I'd been considering switching to GoPro, but not after this stupidity. Fortunately, it seems like there are lots of alternatives on the market now.

As a snowboarder, please accept this bit of advice: don't get one, they are no longer cool. I have seen everything from 4 year olds to 80 year olds with those fucking horribly ugly GoPro cams on their helmets this winter. Every now and then you'll see a Contour which are at least a little less obvious and dorky.

But honestly, unless you are at least well advanced in your sport, spare your friends the home videos.

Sony "The Rootkit Company" actions were a part of what convinced me to get Fujifilm X-Pro1 instead of anything from Sony NEX line (and yes, the sensor is still made by Sony). A larger part of it was that it's a better camera for taking photos indoors and at night, but I really did not like the idea of buying a camera from them.

All this tells me is that any lack of negative reviews are purely due to legal threats, therefore I have to assume that positive reviews cannot be trusted.Now I have to decide; will I buy a product from a company that forbids honest reviews and is prone to sueing?As a potential customer, how sure can I be that the product will do what it promises, and how will I be treated if I complain when it doesn't?They may still offer a superior product and service or they may not. But atleast with their competitors' product, I know what I'm getting.

I've taken it diving and biking. It was down deep enough that I am undergoing continued health problems from that dive. (looong story) but the camera did fine. Diving cameras and housing start around $600, so the 960 was about half that price when I got it.

The problem with the camera is that it shows you what happened, but not in a lot of detail. You can't get really close to stuff and it's always fish-eyed. The basic models don't have an LCD display so you don't know what you've filmed.

The interface is also totally stupid (I've used worse, but only for weirdly specific electronics). They fixed that on the newer versions apparently. Same with the case, there was a chance it would pop open when surfacing. Workarounds exist but again, it was fixed in the 3.

The Hero2 suffers from too much heat, so taking it diving can make it foggy. That'll ruin a day's photos. Turns out you can cut up a tampon and that will do enough of a job dessicating the case that you can get a good day's shots.

Check out the threads on Scubaboard. They don't pull punches anywhere on that forum.

Would I get another one? No. It's great to have as a fun toy, but for getting really good pictures I'm going to have to spend double or more compared to what the GoPro sells for.

I find it quite interesting you are repurposing tampons as a dessicant. Thanks! I have had problems with water in the wrong place in some of my electronic stuff. I had been using cloth bags filled with minute rice. I will get a box of these and experiment.

GoPro deletes negative comments and attacks review sites via malicious abuse of process. GoPro can no longer be seen as impartial or interested in fair representation of the views of customers and reviewers, and are demonstrably interfering with the process. All bets are off; All "reviews" are marketing fluff, all "comments" are shills, all "opinions" are astroturfing. You cannot trust it to be any other way.

It's a shame; I'm going to Australia in the summer and I really wanted a camera capable of recording my experiences there, including scuba, trail biking, maybe some light climbing. I guess I'll have to buy from a competitor. It's one guaranteed lost sale from this saga.

Nawh, they just lobby Congress that the competition that inevitably springs up violates their monopoly business model. They lobby to have law penned that protects their "right" to abuse their customers any way they see fit, while holding their competition at bay with law.

Its the way Business is done. Guns are passe. Anyone can afford one. The style these days is to use Congresscritters, lawyers, and litigation to force your way over your adversaries. Less mess and a cleaner kill.

Because the perjury part of the DMCA only refers to the tiny bit of it where the submitter of the takedown notice states who they are acting on behalf of. The rest can be full of lies and there is essentially no risk as long as the company name is spelled right in the header.. silly and derpy

This is why I was against DMCA and am against six strikes on the ISP side because there is no penalty no matter how bullshit the claims are as long as you own the copyrights and trademarks.

You could put out a review saying "This product sucks and here is why" and the way the rules are set up now the owners of that product line could get it yanked from the web and possibly lose you your net connection depending on how many bullshit strikes you have already gotten, which if you are reviewing anything its really not hard to rack 'em up, look at how several got their YouTube channels banned for talking about a 20 year old fricking game series after Sega spammed DMCA notices to anybody that dared speak about it, and it wasn't a product they sell anymore or even bad reviews!

The entire system is tilted so damned far in favor of those with copyrights its not even funny, as TFA shows you can use DMCA to get rid of anything you don't like and there is zero penalty for filing blatantly false claims, any way you slice it that is fucked up.

Lenz v. Universal [wikipedia.org] suggests that there are theoretically penalties for bad-faith filing of false claims; but that particular result also took on the order of five years of litigation(only possible if you are an EFF test case or made of money), and didn't actually include any punishment for Universal, so practice suggests that there are no penalties whatsoever.

Fair use is for the courts to decide though. You're not going to be done for perjury it you own the trademark or copyright and someone is using it without your permission. If their defense is fair use, they can counter the DMCA take-down request with that as their reason.

It isn't clear that you'll hit the bar for perjury by doing just about anything related to DMCA takedowns; but the US District Court specificially agreed [eff.org] with Lenz's lawyer that fair use is one of the elements that the copyright holder must consider in order to file a takedown request meeting the standards set out by the DMCA:

(Quoted from pages 5-6 of the above):

"Fair Use and 17 U.S.C. 512(c)(3)(A)(v).

When interpreting a statute, a court must begin “with the language of the statute and askwhether Congress has spoken on the subject before [it].” Norfolk and Western Ry. Co. v.American Train Dispatchers Ass’n, 499 U.S. 117, 128 (1991). If “Congress has made its intentclear, [the court] must give effect to that intent.” Miller v. French, 530 U.S. 327, 336 (2000)(internal quotation marks and citation omitted). Here, the Court concludes that the plain meaningof “authorized by law” is unambiguous. An activity or behavior “authorized by law” is onepermitted by law or not contrary to law. Though Congress did not expressly mention the fair usedoctrine in the DMCA, the Copyright Act provides explicitly that “the fair use of a copyrighted work . . .is not an infringement of copyright.” 17 U.S.C. 107. Even if Universal is correct thatfair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright.4Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faithbelief that use of the material in the manner complained of is not authorized by the copyrightowner, its agent, or the law,” the owner must evaluate whether the material makes fair use of thecopyright. 17 U.S.C. 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faithby issuing a takedown notice without proper consideration of the fair use doctrine thus issufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

The Supreme Court also has held consistently that fair use is not infringement of acopyright. See e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433(1984) (“[a]nyone . . . who makes a fair use of the work is not an infringer of the copyright withrespect to such use.”). "

Since the boundaries of fair use are not terribly clearly defined, it could easily be the case that a DMCA takedown is judged to not be a 'misrepresentation' under Section 512(f); but that a counterclaim on fair use grounds could still end up being accepted. However, the courts have apparently decided that, while they may be the ones to step in on disputes over whether something is fair use, 'fair use' is something that you have to take into account to file a valid DMCA takedown. Not that this has had much deterrent effect in practice, of course.

A party is publicly claiming false copyright ownership of the material it did not create. Which is far worse than making an illegal copy. This rises to the level of where criminal conspiracy charges kicks in. Perhaps mail fraud charge should also be thrown into the mix.

The owners of magazine need to contact and file a criminal complaint with the US district attorney's office where the letter/email was written.. (Central Dis

There is. If it can be proven that you were acting in bad faith, then you can be dinged for damages and court costs. However, being stupid is not the same as bad faith, so you pretty much have to have documentation of the filer saying "yeah, we know it's BS but it'll get them offline for a while".

If you own a Review Website... time to move the hosting outside of the USA.

Why does the hosting provider have to get involved anyways? Isn't the content of the website the responsibility of the domain owner? Someone please explain why the hosting company would have shut the entire website down if they didn't remove the page?

They issued the DMCA notice to their ISP - not DigitRev. The ISP folded immediately.

The whole point of the DMCA takedown notice process is that the ISP, in order to remain within the safe harbor vis-a-vis the party issuing the notice, must fold to a valid notice.

Of course, they also must fold the other direction in response to a valid counternotice from the allegedly infringing party, in order to remain within the safe harbor with regard to that party.

But the parties on each side of the notice/counternotice arrangement aren't generally in a symmetric power arrangement, so the importance of staying in the safe harbor with regard to each party isn't the same.

As far as I know, you can't use the DMCA for trademark infringement. They should have hired a lawyer.

Given that the site's host folded like a house of cards, apparently you can use the DMCA for trademark infringement... It's just that doing so isn't supported by the DMCA or anything else.

It seems like a hilariously lousy PR move(especially for a company who, let's face it, is in a market that is highly likely to be commodified pretty hard); but it(yet again) establishes that you can scribble anything you want on a 'DMCA takedown request' and find somebody in the chain who will roll over and wet themselves, no matter how risible your legal standing.

Trouble is, unless you are paying rather more for hosting than the market rate, or deliberately purchasing capacity in some high-ping(relative to most of your readers) country outside the reach of the US, I suspect that your business just isn't worth enough to risk any significant legal exposure, and quite possibly not even enough to pay for a legal consultation before just obeying the takedown.

SoftLayer have a history of being very aggressive on DMCA takedown orders - you may get as little as four hours to remove the content or have your server taken offline. Even if it's a shared server hosting many accounts.

The hosting company may not necessarily be idiots. They just don't want to be hauled into court and have everything on the line when they were just the middle man supplying a service. Even if the DMCA notice is wrong, it is extremely expensive to try and prove this. Maybe there's a chance that the judge will agree and further require GoPro to pay all legal costs, but that is a high risk. Even if all legal costs are paid (ha!) you still have to deal with loss of work time from employees who have to go de

There is a trademark infringement only if someone else uses that same trade mark (or similar mark) to sell a competing product. Since DigitalRev does not sell cameras (or anything even remotely related to cameras) there is no trademark case either. There is no copyright infringement, nor is there trademark infringement. There isn't a patent violation either. The DMCA request is completely bogus... also, Digital Millenium Copyright Act applies only to Copyright... not trademarks. GoPro has no ground to stand

Then the ultimate result of digging into past misdeeds is that no one can buy any product from any company.

To me, such digging has two limits. Forgiveness of misdeeds is possible if a company repents and openly embraces pro-user policies. Otherwise, forgiveness comes through decay as members of management on whose watch the misdeeds occurred leave the company. Let me know when either applies to Sony.

I think Sony is not an improvement in terms of supporting evil. It could be argued that their divisions have little to do with each other, and the evils of Sony Music (rootkits, etc.) or Sony Computer Entertainment (playstation, dropping promised linux support, exposing customers with disregard for security), or any other scandals shouldn't reflect on their cameras. But, I think similar mentality seems fairly consistent through their corporate culture. I've written Sony off entirely.

Sony is a conglomerate though. The different divisions are related only in name and a few shared board members I think. Do the makers and marketers of the camera have anything whatsoever to do with the people who deal with music?

That doesn't make it any better - for one, they can't send a DMCA request for a trademark issue. The responsible thing would be to contact the site owner, not the web host, and not with a legal document. Not that any of their claims are valid to begin with.

1. I bought a GoPro HD Hero a few years ago, to take video and stills on a car trip from Paris to Mongolia. We were shooting timelapse of the entire trip, to be compiled at the end.However, when we were in the middle of Kazakhstan, one day, the camera stops working. I poke around, and see that the filenames havd gone up to DCIM_9999.jpg - and worked out that they had never engineered them to loop back to zero, so the unit had a buffer overflow, and wouldn't work.

We finally got phone access to call a friend, who saw similar threads on their forum. GP refused to acknowledge the bug - they said you had to take out the battery for at least 12 hours, and then it would work. Naturally, this didn't work. Their suggestion was: "If you believe" your unit is faulty, you can send it back to GP in the USA, but you will be liable for freight both ways, and customs import again upon reception."

I emailed them, expecting that because they put such a customer-oriented public face forward, that they'd be decent guys. They were absolutely not.Finally, 6 months later, they released a firmwire upgrade that fixed the issue. The fix wasn't mentioned in the CHANGELOG.

2. Friend driving across the USA, his unit started recording everything in a deep magenta, for no reason, with no fix.

3. Fast forward to this year, doing an enduro motorbike race across africa. Two friends have the new GP3 cameras - which constantly bug. Out of 15 days of riding, they managed to get about 3 hours of video. The unit would power on - when switched to 'video' mode, the screen would freeze, the unit would suck down power, and empty the battery in 20 minutes. This happened on both units, on the latest firmware.

I have been constantly amazed that a company that tries to push an 'extreme' image hates their customers - and the very people that are trying to do 'extreme' stuff. You have the impression they're just guys making hardware for people doing amazing stuff, and they love what they do. This isn't at all the case, as this latest episode only goes to further illustrate.

I posted my experience with Hero3 cameras below. It is a deeply flawed product that never should have been shipped. I feel for your friends as I ahd a similar terrible experience that messed up a trip to Mexico. GoPro should be ashamed of themselves...

GoPro easily produces one of the worst products I've ever had the misfortune of using. The HERO3 I received shipped with a barely working wireless feature, which a software update disabled, then a following update bricked the device. After over one month of going back and forth with technical support, they finally got around to issuing a replacement. The replacement had a bad lens. At last, I finally got one that works! But now more than two months had passed since my initial order. Alas, the video quality is poor, it can no longer be made to record 1080p wide video, and the battery gives me about 30 minutes of recording time. Their product design and engineering is laughably sloppy, and I'm eagerly awaiting the day we see some competition move in and offer decent alternatives.

Hopefully I don't get downmodded as a shill in a thread thats supposed to be bashing gopros but....FWIW, I also recently got a gopro and it works as advertised..that is great! It has a ton of capture options. Its simple enough to use considering it only has 2 buttons. I saw a bunch of complaints about the app, but again it works fine for me. Its a good substitute for not having a way to orient the camera since I can have a preview to help aim it. The app doesn't have playback but you can do that at home when you're not on the mountain, wave, track, reef, etc. Maybe the shot won't be perfect but so what, I'm not compiling a movie so its probably good enough for my personal viewing. I don't doubt that some people have defective units and what major consumer brand doesn't have terrible customer service these days? You could say I was lucky but you could also say my experience is typical and the other guy was UNlucky (since gopro has become as popular as they are). In short I'm happy with the camera, its price and capabilities. And yes, I looked around and didn't find anything comparable. But hey, if you need a tiny "action" camera and find a better one, buy that or don't buy camera at all. Reason for posting: I thought that other anecdote deserved a counter point.

Oh, yeah. The extreme part is when one of the dolphins decides it wants to have sex with you. Then, the swimming gets extreme in a hurry. You want to turn your GoPro off for that. It's a little TOO extreme.

I think the main reason there wasn't ever penalties imposed for false DMCA takedowns is because they didn't want to harshly penalize what actually could have simply turned out to have been an honest mistake (not that I believe for a second that an honest mistake is what actually happened here... or for that matter, most of the other ridiculous abuses of the DMCA, although bringing up the notion here does bring to the forefront of my mind that I don't really know how they would eve

I surf, and ride motorcycles, so my girl decided a gopro would make a cool xmas gift this year. We went to New Zealand in December so she gave it to me early...

Strike 1:
So before we left on our trip, she ordered a Hero3 silver from gopro's website, which advertised "ships by Nov 30th" when she placed the order. After hearing nothing for 4 business days, not even an order confirmation, but having her CC charged $300+tax, she checked the website again and it said the Hero 3 cameras were on 14 day backorder. She then attmpetd to call GoPro. Big mistake. It took 54 minutes to get a live person on the phone. They stated that they could not guarantee when the camera would ship, and could not cancel the order. She gave up, called her Credit card company and disputed the charge, then she went to Best Buy and bought the camera off the shelf there for the same price. The camera from the gopro website never showed up and she got a cryptic email two weeks later from a manager saying the order was cancelled.

Strike 2:
Fast forward two weeks. We used the camera in New Zealand while enjoying our trip, and I was learning to use the camera etc... It seemed ot work OK but had really bad battery life but not a huge deal as I ordered the extended battery pack along with several other accessories, totall around $120. Then we went on a road trip to Baja for New Years. While driving south the GoPro locked up. At that point it wouldn't record at all, evena fter removing the battery and memory card and reinsterting. When we got back I found out it had corrupted the memory card so badly that I couldn't get any videos from that trip off of it. I then followed gopro instructions to reset the camera, and the website said there was a known issue and directed me to update the firmware, but I already had the most recent. Long story slightly shorter, I spent several hours messing with the camera, was hung up on after waiting on hold for 45 min by gopro support, and bought another SD card ($20), before returning it to Best Buy and getting a replacemnet camera.

Strike 3:
Now I have my new camera #2 all updated with the same FW (12/15/2012) and new memory card (which I have two of now) and it seems to work. Yay! So I start recording my commute to work on my motorcycle. After a couple weeks, this camera starts doing the EXACT same thing as my last one. Locks up, corrupts memory cards, factory reset/FW flash/Card reformat doesn't help for more than a few videos. This took about 30-40 videos to start happening, just like the first camera. This time I email gopro support hoping fro better luck. I didn't hear back for 9 days, when I got an email telling me to do all the things I had already tried (and I ahd told them I tried in my first email) and suggesting that I had bought a substandard memory card, which is the same thing their website says (I bought two class 10 san diesk cards along with teh class 10 best buy gave me with the camera). So, I took this camera back to Best Buy as well and complained heavily to their staff about GoPro and the camera. They urged me to try one mroe camera so I did.

Strike 4 (yes there are more than 3):
GoPro Hero3 camera #3 seems to work, jsut like #1 and #2. I start recording videos on my motorcycle and in my truck and what do you know... After about 2 weeks and 25 videos, it locks up, same symptoms as the first two. I waste another 2 horus messing with camera #3, then give up and take it back to Best Buy. They refuse to give me a full refund and I end up with store credit instead. I really can't blame then since it took me 2 1/2 months to ask for my money back after replacing two of them already.

Strike 5 (poosibly another gopro strike):
I write a review of the camera on Amazon and state my experience. Within 2 weeks my review is removed, no word from Amazon about it. I also noticed that sevveral other negative reviews had been taken down (all with the same problems I had) and the camera's rating had actually increased from 2 stars to three. It seems t

The DMCA does not grant any rights to trademark holders at all. It only applies to copyrights. They can't use the DMCA to get the trademark infringing content removed. Their only option is a trademark infringement lawsuit. It's total BS and you are free to toss it in the circular file.

I emailed them this just now:
"Your use of an inappropriate and unfounded DMCA takedown notice has made my decision to purchase a new FPV camera for my R/C planes easier. It will not be a GoPro camera. Issuing a DMCA takedown notice for a bad review is childish and shows that you, as a company, have little faith in your own products if you are afraid that a negative review is going to hurt your business.
I actually own a GoPro camera that I have used for a couple of years and was planning on upgrading it soon. I will NOT upgrade it to another GoPro camera as I simply cannot do business with a company with a severe lack of morals and respect for their customers."
I also posted on their FB page.

They always have a booth at the NAB trade show in Vegas, which starts in a couple weeks. I'll be stopping by and loudly explaining how their actions have guaranteed that I'll never buy one of their shitty cameras, nor will any of the hundreds of friends, family, and business associates who often ask me for technical advice about things like cameras and gadgetry.

I was about to purchase 30 GoPro cameras for the charities I support. I'm glad this came thought now rather than two days from now. I've canceled my orders for their cameras. Going forward, I will refuse to purchase their equipment or anything with their IP in it.

what's worse it that hey think they can tell you to only use "authorized" images, authorized reseller or not. it'd be akin to getting ebay to cancel your auction of the gopro because you took your own pictures.

Go on Ebay for any number of bullet shaped helmet cams that cost next to nothing. They have the same chip as in the GoPro without the marketing cost. The GoPro is the wrong shape for any speed usage anyway.

New rule: If you don't know the difference between trademark and copyright, you're not allowed to send DMCA takedown notices on behalf of your company.

Everyone at GoPro who was involved in this slab of USDA Grad A Bullshit needs to have their high school diplomas revoked. And with that, then any other diplomas or degrees or certifications they have that required a high school diploma should also be rendered null and void.